Attorney General Eric Holder said many encouraging things in his important speech on the future of sentencing reform, but the most striking thing may have been what he did not say. In all his 4,000 words on the United States’ “broken” legal system — and particularly on its outlandishly harsh and ineffective sentencing laws — there was not one mention of executive clemency.
That power, which the Constitution explicitly grants to the president, has always served as an indispensable check on the injustices of the legal system and as a means of demonstrating forgiveness where it is called for. It was once used freely; presidents issued more than 10,000 grants of clemency between 1885 and 1930 alone. But mercy is a four-letter word in an era when politicians have competed to see who can be toughest on crime.
As ProPublica has documented, the pardon process has devolved into a mockery of itself, riven by arbitrariness, racial disparity and charges of abuse. Pardons of powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, have only increased cynicism about the process.
Meanwhile, President Barack Obama’s use of the pardon power remains historically low. In 4½ years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation. No one seems to know why some requests are granted and others denied. To call it a lottery is unfair to lotteries; at least if you pick the right numbers, you’re guaranteed to win.
Many proposals for reform have been put forth over the years, the most promising of which would reduce the power of the Justice Department over the process, where career prosecutors are predictably reluctant to question their own decisions.
Obama’s first White House counsel, Gregory Craig, understood this conflict of interest. Early in Obama’s first term he proposed an independent commission of former judges, prosecutors, defense lawyers and others who would make pardon recommendations to the president. But he left soon after, and any motivation to reform seems to have disappeared with him.
As the experience of many states shows, a functional pardon system must also be accountable. This can mean requiring the executive to publish an annual report on pardon policy and practice. Currently the president has no obligation to explain his grants or denials, which undermines public trust in the system.
In this light it is disheartening that the Obama administration continues to resist calls to remove the current head of the pardon office, Ronald L. Rodgers, despite a finding by the Justice Department’s inspector general that in 2008, Rodgers misrepresented material information in recommending that the president deny a petition for clemency.
In a 2003 speech, Justice Anthony Kennedy said that “a people confident in its laws and institutions should not be ashamed of mercy.” In the 10 years since that speech, requests for mercy have increased even as the prospects for reform have not. In the first 10 months of fiscal 2013, 2,000 inmates applied for commutations, more than in any single year in history.
Executive clemency may not be the ideal way to ameliorate the system’s excesses, but for many people stuck with an unjustly long sentence or a conviction that prevents them from getting jobs, business licenses or even public housing, it remains the only way. In his speech Holder denounced such “unwise and counterproductive” collateral consequences of imprisonment, which makes his failure to address pardons all the more perplexing.
Holder was right to call for a substantial overhaul of our criminal justice system. But any meaningful reform must include the clemency process, by which we temper our most punitive tendencies. It is long past time for the president to heed the words of Kennedy and reinvigorate this fundamental executive prerogative.
— The New York TimesMORE IN Editorials
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